Connie Jugarie and Others on behalf of Ngarrawanji/Western Australia/Jindalee Resources Ltd
[2007] NNTTA 25
•21 March 2007
NATIONAL NATIVE TITLE TRIBUNAL
Connie Jugarie and Others on behalf of Ngarrawanji/Western Australia/Jindalee Resources Ltd, [2007] NNTTA 25 (21 March 2007)
Application Nos: WO05/777
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an inquiry into an expedited procedure objection application
Connie Jugarie and Others on behalf of Ngarrawanji (WC96/75) (native title party)
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The State of Western Australia (Government party)
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Jindalee Resources Ltd (grantee party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 21 March 2007
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites of particular significance – whether act likely to cause major disturbance to land or waters – expedited procedure not attracted.
Legislation: Native Title Act 1993 (Cth), ss 29, 151(2), 237
Mining Act 1978 (WA), ss 20(5), 63
Cases:Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005), The Hon C J Sumner
Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner
Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), J Sosso
Scotty Birrell and Others on behalf of Koongie-Elvire/Western Australia/Jindalee Resources Ltd, NNTT WO05/662, [2007] NNTTA 24 (21 March 2007), Hon C J Sumner
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437
Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32
Western Australia/Winnie McHenry on behalf of the Noongar People, NNTT WO98/125, [1999] NNTTA 210 (28 July 1999), Hon E M Franklyn QC
Solicitors for the Mr Robert Powrie, Kimberley Land Council
native title party: Mr Brendan Renkin, Kimberley Land Council
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Ms Jan Mason, Department of Industry and Resources
Representative of the Ms Kate Moran
grantee party: Hetherington Exploration & Mining Title Services Pty Ltd
REASONS FOR DETERMINATION
On 13 July 2005, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E80/3433 (‘the proposed licence’) to Jindalee Resources Ltd (‘the grantee party’) and included in the notice a statement that it considered the grant attracted the expedited procedure (that is one which can be done without the normal negotiations required by s 31 of the Act).
The proposed licence comprises an area of 62.12 square kilometres and according to the s 29 notice is located 8 kilometres northwesterly of Halls Creek in the Shire of Halls Creek. The Tribunal’s Geospatial map reveals that the southern edge of the proposed licence area is adjacent to the township of Halls Creek and extends some 12 kilometres to the north of and 10 kilometres to the west of it. 91.09 per cent of the proposed licence is overlapped by the Ngarrawanji registered claim (WC96/75 registered from 25 June 1996).
On 11 November 2005, Connie Jugarie and Others on behalf of the Ngarrawanji (WC96/75)('the native title party’) made an expedited procedure objection application to the Tribunal.
In accordance with standard practice in expedited procedure matters, the Tribunal gave directions to the parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These original directions allow a four month period, after the s 29 closing date for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent. Despite extensive negotiations between the native title party and grantee party, including s 150 mediation assistance provided by the Tribunal, no agreement could be reached and the matter must now proceed to inquiry.
The Government party lodged its contentions and evidence by 3 March 2006 and the native title party by 16 January 2007. The grantee party indicated it would rely on the Government party's contentions.
At the Listing Hearing on 25 January 2007 parties reported that all contentions and evidence had been lodged and requested that the matter be heard ‘on the papers’ that is, without holding a further hearing. Parties also requested that the matter be determined at the same time as another Kimberley claim objection involving the grantee party (Scotty Birrell and Others on behalf of Koongie-Elvire/Western Australia/Jindalee Resources Ltd, NNTT WO05/662, [2007] NNTTA 24 (21 March 2007), Hon C J Sumner (‘Scotty Birrell/Jindalee’) (for which final compliance was not due until 22 February 2007). I am satisfied that the objection can be adequately determined on the papers (s 151(2) NTA).
Legal principles
Section 237 of the Act provides:
‘237 Act attracting the expedited procedure
A future act is an act attracting the expedited procedure if:
(a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b) the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c) the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.’
In Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (‘Walley’), the Tribunal considered the applicable legal principles (at [7]–[23]) and the nature of exploration and prospecting licences and conditions to be imposed including what activities are permitted by it and what limits are placed on those activities (at [24]–[35]). I adopt those findings for the purposes of this inquiry while noting that Standard Conditions (2) to be imposed on the exploration licence (Walley at [34]) now contains an additional requirement that backfilling and rehabilitation of the land must now be carried out no later than six months after excavation unless otherwise approved by the Environmental officer, Department of Industry and Resources. With respect to issues arising under s 237(b) I also adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner (‘Maitland Parker’) at [31–[38], [40]-[41].
Evidence in relation to the proposed act
Government party documentation establishes the following notable underlying land tenure on the proposed licence:
Moola Bulla Pastoral lease 3114/1101 vested in Camballin Developments (WA) Pty Ltd (91.1 per cent overlap);
Department of Environment Irrigation Development 1 (Ord River) (86.7 per cent overlap);
File Notation Area 1540 (10.9 per cent overlap);
Common Reserve 23136 (4.6 per cent overlap);
Reserve 41408 vested in the Thalngarr Ngarriny Aboriginal Corporation for the use and benefit of Aboriginal inhabitants (2.3 per cent overlap);
Reserve 37420 vested in the Aboriginal Lands Trust for the use and benefit of Aboriginal inhabitants (1.1 per cent overlap);
Department of Environment Water Reserve 14 (0.3 per cent overlap);
File Notation Area 6782 (0.2 per cent overlap);
Lease 3116/9431 (0.2 per cent overlap);
Vacant Crown Land no. 136 (0.1 per cent overlap);
Cemetery Reserve 24903 (less than 0.1 per cent overlap);
Halls Creek Townsite Boundary (less than 0.1 per cent overlap); and
Road Reserves (each less than 0.1 per cent overlap).
The documentation notes that there are six Aboriginal communities in the vicinity of the proposed licence: Mardiwa Loop and Red Hill are located within the proposed licence area at its southern end, Yardgee approximately five hundred metres south of it and Nicholson Town Camp approximately two kilometres south of it. All these communities are in close proximity to Halls Creek. The Wungul community is approximately seven kilometres south of the proposed licence area and Milba approximately seven and a half kilometres east of it.
The documentation also notes there has been some exploration activity over the area of the proposed licence: one ‘live’ exploration licence granted in 2000 (95 per cent overlap), one temporary reserve granted in 1963 and forfeited in 1972 (100 per cent overlap), one mineral claim granted in 1963 and forfeited in 1966 (0.3 per cent overlap), two mineral claims granted in 1976 and surrendered in 1984 (1.9 per cent overlap each), five exploration licences granted then forfeited or surrendered between 1993 and 2005 (overlapping between 0.4 and 4.4 per cent) and two exploration licences granted in 1993 and surrendered in 1998 and 2001 (overlapping at 13.1 and 46.6 per cent respectively). The documentation also notes that one ‘live’ mining lease overlaps at 0.6 per cent and two pending mining lease applications overlap at 0.4 and less than 0.1 per cent.
The grant of the proposed licence will be subject to the standard conditions imposed on the grant of all exploration licences in Western Australia (see Maitland Parker at [21] Conditions 1–4). Additional conditions imposed relate to:
providing notification to the pastoral or grazing lessee, of the grant of the licences and of certain exploration activities (conditions 5–6);
seeking permission from the Minister for State Development prior to mining on Halls Creek Townsite, Halls Creek Water Reserve and Use and Benefit of Aboriginal Inhabitants Reserves 37420 and 41408 (condition 7);
no mining on Cemetery Reserve 24903 and mining within a distance of 140 metres laterally from the reserve being confined to below a depth of 50 metres with rights of ingress to and egress from the said Reserve being at all times preserved to the public (condition 8);
no excavation, excepting shafts, approaching closer to the Great Northern Highway, Highway verge or the road reserve than a distance equal to twice the depth of the excavation and mining on the Great Northern Highway or Highway verge being confined to below a depth of 30 metres from the natural surface, and on any other road or road verge, to below depth of 15 metres from the natural surface (condition 9);
no interference with Geodetic Survey Station Gordon Downs 21 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface (condition 10); and
Department of Environment restrictions and requirements in relation to exploration activities and seeking written approval, rights to ingress and egress, and storage and disposal of hazardous waste in respect to Ord River Irrigation area C (conditions 11-18)
The following Endorsements (which differ from conditions in not making the licensee liable to forfeiture of the licence for their breach) will be imposed.
The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 (WA) and any Regulations thereunder; the Water and Rivers Commission Act 1995 and any Regulations thereunder; and the Rights in Water and Irrigation Act 1914 and any Regulations thereunder.
The licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
The grant of this licence does not include any portion of Bulara Location 42 which is referred to in Section 29(2) of the Mining Act 1978 (i.e. is private land) except that below 30 metres from the natural surface of the land.
Searches of the DIA Register of Aboriginal Heritage Sites provided by the Government party reveal no registered Aboriginal sites under the Aboriginal Heritage Act 1972 (WA) located within the area of the proposed licence.
The native title party’s contentions include the affidavit of Oscar Yanigie dated 9 November 2006 made in the following terms:
‘I Oscar Yanigie, pensioner, of Halls Creek, in the State of Western Australia, solemnly and sincerely declare and affirm that:
1.My name is Oscar Yanigie. I am a Ngarrawanji man through my mother. My skin identity is Jangarri. I am a member of the Ngarrawanji Native Title Claim Group (WC 96/75). I was born on the Moola Bulla Pastoral Lease land, in the area immediately northwest of Halls Creek.
2.I am one of the senior people for the Ngarrawanji Native Title Claim group and under our Law have authority to speak for country covered by that native title claim. I know the area where Jindalee Resources Ltd, “the grantee party”, has applied for a Exploration License (E80/3433) very well because I have been shown the map of the application area and I have been to this area many times before. This is Ngarrawanji country and it is the country where grew up. The map I was shown is attached to this affidavit and marked “A”.
3.I also use to work in the exploration license area as a stockman, mustering cattle. I, as well as other Ngarrawanji people still go there now, as the Station Manager of Moola Bulla Station does not mind them going there to do so.
INTERFERENCE WITH COMMUNITY AND SOCIAL LIFE
4.The exploration license area falls completely within Ngarrawanji country and I grew up in this area and used to walk through it as a child, and I and other Ngarrawanji people, still go there now. We would go to this area to hunt kangaroo, goanna and porcupine. We would kill them with spears made out of bamboo sticks. These sticks would be straightened by putting them through the fire, and then we would use kangaroo string to make the spear tight. Kangaroo string is taken from the kangaroo’s internal organs.
5.Ngarrawanji people including myself go fishing in this area - in the streams. We fish for brim, catfish and sometimes barramundi, although they are small in size. We would dig up worms on the banks and use them as ‘live bait’, which would attract the fish. We would also catch mud crabs, but mainly in the wet season. Ngarrawanji still go there today for hunting and fishing as the Station Manager of Moola Bulla Station does not mind us going there to do so. Women would gather bush plants from this area as well.
6.I am concerned that the activity that would take place under an Exploration License in this area will affect our hunting of goanna, porcupine and kangaroo by destroying the habitats for these animals.
INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE
7.My country and the Law we follow come from the Dreamtime. I know the exploration license area very well. There are places within the exploration license area which are very important and have great significance in our traditional religion. Under our Law we have to look after these places.
8.I know that corroboree or ceremonies were done in the old days by Ngarrawanji people in the hilly areas east of Mt Barrett, which is inside the exploration license area. These ceremonies were stopped by the Government, but we still remember the places where this took place.
9.There are also many camp sites within the exploration license area, where people used to live in the old days. In the old days, people would live at these sites with their dogs that they would use for hunting.
10.I am concerned that the activity that could happen under an Exploration License could destroy or damage these sites, which are of important to my people from the Dreamtime to the present day. These activities could not only destroy these physically but are not allowed under our Law
MAJOR DISTURBANCE TO LAND OR WATER
11.I am aware of the activities which the grantee party could do on the exploration license area under the Mining Act if they are granted the exploration license.
12.These activities could destroy the animals that we hunt as well as their habitats They could also destroy and damage the sites that our people hold as being special to our Law as has been passed on to us by our ancestors.
13.The mining companies should come and see the elders of the Ngarrawanji people before they do anything in our country. They should come and ask permission from us before they do anything. Under our Law and Custom, the Ngarrawanji people are the bosses of the country where the exploration license area lies. I belong to this country as one of the Ngarrawanji people and it is my country through my mother.’
The native title party’s contentions also include the affidavit of Josie Farrar dated 11 November 2006 made in the following terms:
‘I, Josie Farrar, home duties, of Halls Creek, in the State of Western Australia, solemnly and sincerely declare and affirm that:
1.My name is Josie Farrar. I am a Nangala woman of the Ngarrawanji people through my mother. I am a named Applicant of the Ngarrawanji Native Title Claim (WC96/75). I was born in 1947 on Moola Bulla Pastoral Station, in the area immediately northwest of Halls Creek.
2.I am one of the senior people for the Ngarrawanji Native Title Claim group and under our Law have authority to speak for country covered by that native title claim. I know the area where Jindalee Resources Ltd, “the grantee party”, has applied for a Exploration License (E8/3433) very well because I have been shown the map of the application area and I have been to this area many times before. This is Ngarrawanji country and it is the country where I was born. The map I was shown is attached to this affidavit and marked “A”.
3.I use to walk through this country when I was a child and I as well as other Ngarrawanji people still go there now, although sometimes we have to get permission from the Station Manager of Moola Bulla Station to do so.
INTERFERENCE WITH COMMUNITY AND SOCIAL LIFE
4.The exploration license area falls completely within my mother’s country and I used to walk through this area when I was a child. We would go to this area to get bush fruits and plants like byally, mundjiwarra, ballabie, goolabie, gillee, ngawyng (tubars), nandiali and rungoo. We would gather mundjiwarra before the wet season and byally after the wet season.
5. Ngarrawanji people including myself use to walk through this area to go camping and hunting, when I was a child. They would go hunting there for goanna, turkey, emu and kangaroo. We would also collect flint stones from the exploration license area to make spearheads for hunting. Ngarrawanji still go there today for hunting and camping but must get permission from the Station Manager of Moola Bulla Station.
6.I am concerned that the activity that would take place under an Exploration License in this area will affect our hunting of goanna, turkey and kangaroo by destroying the habitats and food sources for these animals. I am also concerned that any Exploration activity could destroy the bush plants of the area that we go there to gather.
INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE
7.My country and the Law we follow come from the Dreamtime. I know the exploration license area very well. There are places within the exploration license area which are very important and have great significance in our traditional religion. Under our Law we have to look after these places.
8.In 1992, I and other Ngarrawanji people went to the exploration license area to undertake some site identification. There are many sites in this area which are important to my people. There are many camp sites which are located in the southern part of the exploration license area. Some of these sites were interfered with when Telecom built a road that dissects this area coming from Mt Barrett and running through to Bob Black Hill north of Halls Creek. I am worried that the remaining camp sites be protected from further interference. Despite the Ministry of Native Affairs stopping ceremonies being conducted at these camp sites about fifty years ago, Ngarrawanji still go to practice ceremony at these sites, so they remain important to us.
9.There is also a Dreaming track that runs through the exploration license area, coming through from the Muller Ranges or Wooranga, along the O'Donnell River or Dalingmun and running through from Mt Barrett or Ngarrawanji to Bob Black Hill or Boolaroo, Parts of this Dreaming track were interfered with when Telecom built its road, but we want to protect those parts of it that have not been destroyed
10.Another important place is in the northern part of the exploration license area where there was a massacre of ‘blackfellas’ around the beginning of the 20th century. Ngarrawanji still respect this place and want it to be protected.
11.I am concerned that the activity that could happen under an Exploration License could destroy or damage these sites, some of which are of great significance to my people from the Dreamtime to the present day. These activities could not only destroy these physically but are not allowed under our Law.
MAJOR DISTURBANCE TO LAND OR WATER
12.I am aware of the activities which the grantee party could do on the exploration license area under the Mining Act if they are granted the exploration license.
13.These activities could destroy the wildlife that we hunt as well as their habitats. Also, these activities could destroy or damage the plant-life that we go to this area to gather. They could also destroy and damage the sites that our people hold as being special to our Law as has been passed on to us by our ancestors.
14.The mining companies should come and see the elders of our people before they do anything in our country. They are strangers and they should come and ask permission from us before they do anything. Under our Law and Custom, the Ngarrawanji people are the bosses of the country where the exploration license area lies. I belong to this country as one of the Ngarrawanji people and it is my country through my mother.'
The evidence of Mr Yanigie and Ms Farrar is uncontested and I accept it. I accept that Mr Yanigie and Ms Farrar are ‘senior people for the Ngarrawanji Native Title Claim group’ and have authority to speak on behalf of the native title party. Mr Brendan Renkin, representative for the native title party, has confirmed that Ms Farrar is one of the persons comprising the native title party applicant (Ms Josephine Farrer).
Community or social activities (s 237(a))
The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence and activities undertaken pursuant to it are likely to (in the sense of there being a real risk) that there will be interference with the community or social activities of the native title party (see Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 at 449-450, ([23]) and see cases cited below). Direct interference involves an evaluative judgement that the future act is likely to be the proximate cause of the interference and must be substantial and not trivial in its impact on community or social activities (Smith at 451, ([26])). The assessment is also contextual taking account other factors which may already have had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (Smith at 451, ([27])).
The Government party relies on relevant aspects of its regulatory regime under the Mining Act, including the provisions of s 63 and conditions to be imposed on exploration licences, s 20(5) in relation to pastoral leasehold areas and the additional conditions/endorsements outlined above, to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title party in relation to the area of land concerned. I have previously found and confirm that s 20(5) in relation to pastoral leases is of little assistance to the Government party (Walley at [37]).
The evidence suggests that the area of the proposed licence has been subject to significant prior exploration activity. Nonetheless, the evidence of Mr Yanigie and Ms Farrar confirms that historically the native title party has enjoyed access to the area and still carries on community or social activities at least to some extent up to the present day. The principal issue under s 237(a) is whether the extent of community or social activities is such that exploration is likely to interfere with them. The bulk of evidence in the affidavits is of activity which has taken place in the past. For instance most of paras 4 and 5 of Mr Yanigie’s affidavit refers to activity which has occurred in the past. The word ‘would’, the past tense of ‘will’ is used throughout both affidavits. The evidence of present activity is that, Mr Yanigie ‘as well as other Ngarrawanji people still go there now’ (para 3) and ‘Ngarrawanji people, including myself, go fishing in this area’ (para 4). In para 6 there is a reference to ‘our hunting of goanna, porcupine and kangaroo’ being affected by exploration.
In a similar way Ms Farrar’s affidavit principally refers to past activity. As to the present she says she ‘as well as other Ngarrawanji people still go there now’ (para 3); ‘Ngarrawanji still go there today for hunting and camping’ (para 5). In para 6 she expresses concern that exploration activity will ‘affect our hunting of goanna, turkey and kangaroo’ and ‘the bush plants that we go there to gather’. In para 8 she deposes to the native title party currently practising ceremony at certain camp sites within the area of the proposed licence.
The activities deposed to include hunting kangaroo, goanna, porcupine, turkey, emu and kangaroo, fishing for brim catfish, small barramundi and mudcrabs, collecting flint stones for spearheards, and gathering bush plants and fruits (both affidavits paragraphs 4-5). However, the evidence of contemporary activities is not specific as to the frequency or numbers of persons involved in these activities. There are six established communities within the vicinity of the proposed licence area, however no evidence is given of the size of those communities or how many Ngarrawanji people referred to in the native title party affidavits live in those communities or the main township of Halls Creek. Nevertheless, given that Halls Creek and surroundings are a major Indigenous centre I am prepared to infer that at least some of the native title party group reside in the area and participate in the activities referred to by Mr Yanigie and Ms Farrar, both of whom give their address as Halls Creek.
Often, given the nature and extent of a native title party’s community or social activities, the Tribunal has found that, because of its relatively limited nature, exploration activity is not likely directly to interfere with these activities except in an incidental and insubstantial way. This is such a case. My finding is that given the nature and extent of the community and social activities they are not likely to be directly interfered with by the grant of the proposed licence and the activities carried out pursuant to it. This finding is consistent with that made in Scotty Birrell/Jindalee based on similar evidence.
The finding is also supported by the fact that access to the area would be limited to the area in which exploration is taking place and temporary. While the total area of the licence will be 62.15 square kilometres, intensive ground disturbing exploration will only occur at any one time over a small area. Further, the area of the Ngarrawanji claim is some 4,078 square kilometres, much larger than the proposed licence area thus making it less likely that exploration on the licence area will impact on community and social activities, which I can infer are likely to be carried out over a broader area than that of the proposed licence (Cheinmora at [31] citing Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), J Sosso (at [43]-[44])).
Reserves 37420 and 41408 for the use and benefit of Aborigines only overlap the proposed licence area to a small extent (3.4 per cent in total) and are not of major significance in these proceedings, nevertheless I find, consistently with previous Tribunal decisions, that the expedited procedure would be attracted over this area irrespective of the evidence relating to the s 237 factors. The Tribunal has found that the Government party’s regulatory regime in relation to Aboriginal Reserve Land means that access to the land will not be given unless agreement with a native title party has been reached (see for example most recently Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250 (‘Cheinmora’) at [21]-[24]) and that the expedited procedure is attracted because that agreement is likely to ensure that the interferences and disturbances referred to in s 237 do not occur. Because of the regulatory regime in place and the need for agreement of Aboriginal people (some of whom are members of the native title party) I am satisfied that, over the areas where people (including members of the native title party group) live the exploration activity is not likely to interfere with their community or social activities.
Sites of particular significance (s 237(b))
The issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (i.e. more than ordinary) significance to the native title party in accordance with their traditions. There are no sites recorded on the Register kept under the Aboriginal Heritage Act within or overlapping the proposed licence, but this does not mean there may not be other sites or areas of particular significance over the area of the proposed licence or in the vicinity. The Register does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters. The Aboriginal Heritage Act protects all Aboriginal sites, whether on the Register or not.
The evidence of Mr Yanigie and Ms Farrar establish the following facts in relation to areas or sites of particular significance within the proposed licence area.
There are places of great significance in accordance with the native title party’s traditions (largely unspecified) which must be looked after by them (Yanigie and Farrar – para 7).
There are old ceremony places in the hilly areas east of Mt Barrett inside the proposed exploration licence area (Yanigie – para 8).
There are many camp sites where people used to live which are of importance (Yanigie – paras 9 and 10, Farrar – para 8).
Currently the native title party still conducts ceremonies at some sites (Farrar – para 8).
There is a dreaming track which runs through the area of the proposed licence, parts of which have already been interfered with by Telecom road building (Farrar – para 9).
There is an important place where a massacre of ‘blackfellas’ occurred (Farrar – para 10).
This evidence is uncontested and asserts all of the sites referred to by Mr Yanigie (para 10) and some of the sites referred to by Ms Farrar (para 11) are of importance or great significance from the Dreamtime. Based on this evidence I find that all the sites referred to are of particular significance to the native title party in accordance with their traditions.
I must now consider whether the presumption of regularity, the protective provisions and procedures of the Aboriginal Heritage Act, and any other protective arrangement that may be in place, render it unlikely that there will be interference with any areas or sites of particular significance. The Government party relies on the regulatory regime based on the Aboriginal Heritage Act which has been described on numerous occasions by the Tribunal, recently in Maitland Parker at [31]–[38], [40]–[41].While the Tribunal has usually found that the site protective regime based on the Aboriginal Heritage Act is sufficient to ensure that interference with sites of particular significance is unlikely, each matter must be considered on its own facts. (See for example Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005), Hon C J Sumner at [26]–[34]).
The grantee party has not provided evidence of its exploration intentions and the matter is therefore to be determined on the basis that the rights given under the Mining Act will be exercised to the full (Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32). What is potentially involved is set out in Walley at [24]-[37]. However, there is no evidence to suggest that the grantee will not act lawfully and in accordance with the Aboriginal Heritage Act.
Although the evidence in this matter is not the same or as strong as in Scotty Birrell/Jindalee, there are similarities which lead me to the same finding I made in that matter. If the evidence had only been of a general nature as given in para 7 of each affidavit, it would not have been sufficiently specific to enable a finding of the existence of sites of particular significance. It is necessary to be able to identify the special nature of any site (Western Australia/Winnie McHenry on behalf of the Noongar People, NNTT WO98/125, [1999] NNTTA 210 (28 July 1999), Hon E M Franklyn QC). The evidence does contain this information in relation to each of the sites referred to above. For instance, on the evidence, the old ceremony grounds in the hilly areas east of Mt Barrett and places where people used to live are of particular significance. If the evidence had been confined to one or two sites or only to the dreaming track referred to in para 9 of Ms Farrar’s affidavit, I could probably have been satisfied that knowledge of them by the grantee party combined with the regulatory regime would be sufficient to ensure that interference with them was unlikely. However, the evidence establishes the existence of a considerable number of sites, the nature of which is known but the precise location is not. The evidence supports a finding that the subject area is site rich at least in parts of it. On balance, I am of the view that the number and nature of sites established by the evidence and the need for their locations to be identified means that there is a real risk of interference with them despite the sites protection regime unless the normal negotiations provided for under the Act take place.
Major disturbance to land and waters (s 237(c))
No findings in relation to this topic are necessary as a determination that the expedited procedure is not attracted is justified by my findings on s 237(a) and s 237(b).
Determination
The determination of the Tribunal is that the grant of exploration licence E80/3433 to Jindalee Resources Ltd is not an act attracting the expedited procedure.
Hon C J Sumner
Deputy President
21 March 2007
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